Reorienting Bowers v. Hardwick

Abstract

This Article challenges the conventional thinking about the Supreme Court’s decision in Bowers v. Hardwick. It argues that one need not read Hardwick to have “held” that the Due Process Clause of the Fourteenth Amendment affords no protection to private, consensual “homosexual sodomy.” Rather, through a fresh reading, the Article maintains that one can interpret Hardwick to have avoided a decision on the merits of the substantive due process claim presented in the case. This alternative reading permits Hardwick to be regarded as having established a kind of prudential interpretive rule. If so, for reasons the Article discusses, lesbian and gay rights advocates might choose to defend a reinterpreted Hardwick as a matter of legal doctrine. Such a defense would provide courts with a basis for distinguishing between those constitutional claims that do, and those that do not, offend deeply held and widely shared social values. From pragmatic and strategic points of view, these are important distinctions that might otherwise be unavailable as a matter of constitutional principle alone. To guide the judicial application of Hardwick, this Article proposes a modification to an increasingly popular way of thinking about lesbian and gay rights: the “like race” miscegenation (or Loving) analogy. Typically, the miscegenation analogy invokes Loving v. Virginia as a substantive reason for striking down laws that discriminate against lesbians and gay men. This Article argues that a reformulated, more historically accurate version of the analogy can provide courts with a source of judgment about how to apply Hardwick when understood as a prudential interpretive rule. It contends that rather than looking to Loving as the sole (or primary) source of judgment, courts could look for guidance to the process of constitutional evolution, as represented by some of the social and legal changes that took place in the time between the Court’s decision in Loving and its pragmatic non-decisions in an earlier miscegenation case, Naim v. Naim. Those social and legal changes, which reflect what the Article calls “the conditions of prudence,” can be abstracted and used, by analogy, to help a court to decide whether, in a particular case involving discrimination against lesbians and gay men, Hardwick counsels judicial action on the merits or, in contrast, judicial restraint.